REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1289 OF 2002
State of M.P. ..Appellant
Versus
Abdul Kadir & Anr. ..Respondents
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. The State of Madhya Pradesh is in appeal against the judgment of a
Division Bench of the Madhya Pradesh High Court dismissing the Letters
Patent Appeal filed by the State. In the Letters Patent Appeal challenge was
to the order dated 30.8.2001 passed by learned Single Judge in Writ Petition
No.777 of 2001. Respondent- a life convict had filed the Writ Petition
stating that he is entitled to be released under the provision of the Madhya
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Pradesh Prisoners (Release on Probation) Act, 1954 and the Rules made
thereunder. Plea in the writ petition was that his case had been
recommended by the District Magistrate and the Superintendent of Police
but the Probation Board in its meeting held at 24.1.2001 did not recommend
his case for release on probation.
2. Learned Single Judge by a practically non-reasoned order held that in
view of the recommendation of the District Magistrate and the
Superintendent of Police and the Probation Officer, the writ petitioner was
entitled to be release on probation. This order was challenged before the
Division Bench in a Letters Patent Appeal. The Division Bench held that
there was no substance in the appeal and also noted that the appeal was
barred by 32 days, and, therefore, dismissed the Letters Patent Appeal.
3. Learned counsel for the appellant submitted that neither learned
Single Judge nor the Division Bench discussed the order of the Probation
Board and the reasons given by it for rejecting the recommendation for
release on probation.
4. There is no appearance of the respondent in spite of service of notice.
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5. It is to be noted that neither the learned Single Judge nor the Division
Bench discussed the reasons indicated by the Probation Board. The opinion
of the Board shows that taking into account the gruesome nature of the
murder and the background in which the murder was committed, the
recommendations were not accepted. The State Government, Jail
Department accepted the recommendations of the Probation Board. The
Division Bench erroneously observed that the Single Judge had set aside the
order of the Probation Board. In fact, there is no such finding or conclusion
recorded by learned Single Judge. The parameters in the matter of release
on probation were dealt with by this court in Arvind Yadav v. Ramesh
Kumar [2003(6) SCC 144] in paragraphs 6,7 &8 it was held as follows:
“6. We are unable to sustain the impugned judgment of the
High Court. Each of the convicts before the High Court had
been found guilty of commission of serious crime. The
impugned judgment notices that offences against the convicts
were under Sections 302/307/394/304-B/498-A/325 of the
Indian Penal Code and the convicts were serving their
respective sentences in jail. In all the cases before the High
Court, the recommendations of the Probation Board that had
been accepted by the State Government were against the
release of the convicts. If there was non-application of mind to
the relevant considerations, the appropriate course was to
remand the case for fresh decisions by the authorities except, if
in a given exceptional case, for strong cogent reasons, the High
Court may have examined itself the relevant facts and quashed
the order declining the release. The High Court, instead of
adopting this course, has made a general observation that the
remand to the State Government for fresh consideration is
bound to delay the matter causing further injustice to the
convicts.
7. Apart from the fact that there are factual infirmities in the
impugned judgment, it is also to be borne in mind that the
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victim and the family of the victim who have suffered at the
hands of the convict have also some rights. The convicts have
no indefeasible right to be released. The right is only to be
considered for release on licence in terms of the Act and the
Rules. The Probation Board and the State Government are
required to take into consideration the relevant factors before
deciding or declining to release a convict. In the present case,
the Probation Board had not recommended the release. The
State Government had confirmed the order of the Board. The
writ petition had failed before the learned Single Judge. The
facts of individual cases were not considered by the Division
Bench. In the case of Ramesh Kumar, the stand of the State
Government was that he along with six others had formed an
unlawful assembly and murdered Jitendra, son of Shashi
Mohan Yadav on 20-9-1994 in Hoshangabad, Madhya Pradesh
causing seventeen injuries on him with swords, knives and
gupti and that Ramesh Kumar was the accused in fourteen
cases filed under various sections of the Indian Penal Code.
The manner of commission of crime is a relevant consideration.
In a given case, the manner of commission of offence may be
so brutal that it by itself may be a good sole ground to decline
the licence to release. The Rules provide for a detailed
procedure for consideration of application for release. Once
rejected, again application for release can be made after two
years. The Board comprises of the Home Secretary of the State
Government or any other empowered officer, IG of Prisons or
Deputy IG and another member.
8. The affidavit filed by the State Government in case of
Ramesh Kumar also states that he has been released under the
impugned order of the High Court after serving less than 8
years and he is already intimidating people after his release
from prison. The case of the appellant is that no notice was
issued to him or any other member of the family and, therefore,
there was no occasion for the family to object to the release of
the convict. Therefore, the High Court also committed factual
error in observing that notice had been issued to the family
members of the victim. The facts are required to be examined
in every case individually which was not done. In a given case,
the mere fact that the family members of the victim were not
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objecting or were supporting release may not be sufficient, by
itself, so as to direct the release of the convict on that basis
alone. In yet another case, by itself, it may be a very strong
factor. The fact that a co-accused has been released again, by
itself, may not be decisive. In a nutshell, the facts and
circumstances of each case have to be taken into consideration
individually. Likewise, the mere fact that one of the members
of the Board or the District Magistrate or the Superintendent of
Police or the Panchayat has recommended release is by itself of
no consequence. The recommendation is of the Board and not
of an individual member and the decision is to be taken having
regard to all the relevant factors. The State Government and the
Board have to take into consideration not only the conduct of
the convict but also his criminal antecedents; the effect of such
release on the victims or their family; the propensity of the
convict to commit further criminal act and other similar factors
which may be considered relevant. The order of the State
Government cannot be interfered with only because another
view is possible.”
6. Since the High Court has not considered the issues in the proper
perspective, we set aside the impugned order of the Division Bench and we
direct it to re hear the LPA on condonation of delay, keeping in view the
parameters indicated by this court in Arvind Yadav’s case (supra).
7. The appeal is allowed to the aforesaid extent.
………………………………….J.
(Dr. ARIJIT PASAYAT)
………………………………….J.
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(ASOK KUMAR GANGULY)
New Delhi,
February 13, 2009
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